On Liberty (19 page)

The bottom line is whether you choose a partisan politician or an independent judge to decide the limits of our basic human protections. Do you rely on goodwill and popular politics alone when it is you or your loved ones, quite literally, on the line?

Dear Reader, whether you have read my whole case or just skimmed it, whether you started or finished supportive, sceptical or downright seething, you have kindly indulged me for long enough. You have listened for some hours of your own precious life, which, let’s face it, you are never getting back. I have told you about lots of different people, young and old,
passed and still living, heroes and occasional villains, much admired colleagues and friends. Forgive me remembering one more dear one, who so encouraged me to write this book.

Dame Juliet Wheldon CB QC was the chief government lawyer and, before that, my boss, when I was young and worked in the Dark Tower. She was a consummate public servant of independence and discretion, including when we became close friends in the final years of her all too short life. I never knew if or how she voted and she never asked me if or where I put my cross. Juliet was a brilliant woman of talent and privilege, her greatest privilege probably being her amazing first-rate brain. This clever lawyer could have used her gifts to make financial fortunes for herself and others. But instead she chose public service and the Human Rights Act passed under Home Office sponsorship and on her watch. In her manner she was so English, at times reminding me of great cultural icons such as Joyce Grenfell or Penelope Keith, but she also loved to travel, initially to Italy in particular, but later further afield, to India and even some less than safe spaces in the Middle East.

A career public servant, she faithfully advised governments of both persuasions, without fear or favour but with enormous respect for the democratic authority of those who put themselves up for and win the public vote. She watched my transition to Liberty with interest and sometimes amusement and she didn’t agree with me on every difficult issue, but she did agree on the value of protecting the European Convention and Human Rights Act at all costs. We two friends originated on different continents and had no blood relationship. You will no doubt have friends like this too. We were united by common humanity, humour and experience, and much more besides. I will not say that it was the law that united us, but an ultimate respect for it didn’t hurt. As I hope I have demonstrated, when it comes to protecting human beings, and the underlying values that most of us ultimately hold dear, a little hard-edged legal protection can make all the difference in the world.

In Liberty’s eightieth year, we face a fundamental moment in our national and global life. There are no doubt enormous challenges and opportunities to come and some yet to be imagined. Whatever the powerful say about new threats as opposed to old-fashioned values, don’t forget the continuing case for our human rights. They were needed by and taken from the victims of the Holocaust. In some parts of the world today, people still only dream of them. They were forged after the Second World War and provided some accountability for, if not always prevention from, grave error, during the War on Terror. Yes they protect criminal suspects; but we can all become suspect sometime. And they protect rape and torture victims too. They protect ‘foreigners’, but so are we all. Human rights empower the vulnerable and irritate and inconvenience the mighty. But, trust me, you won’t know what you had till it’s gone.

An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes.

[9th November 1998]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Introduction

1. The Convention Rights.
   
   1. (1) In this Act “the Convention rights” means the rights and fundamental freedoms set out in—
      
      1. (a) Articles 2 to 12 and 14 of the Convention,
         
      2. (b) Articles 1 to 3 of the First Protocol, and
         
      3. (c)
         [
         ^F1
         Article 1 of the Thirteenth Protocol
         ]
         ,
         

         as read with Articles 16 to 18 of the Convention.
         

   2. (2) Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15).
      
   3. (3) The Articles are set out in Schedule 1.
      
   4. (4) The
      [
      ^F2
      Secretary of State
      ]
      may by order make such amendments to this Act as he considers appropriate to reflect the effect, in relation to the United Kingdom, of a protocol.
      
   5. (5) In subsection (4) “protocol” means a protocol to the Convention—
      
      1. (a) which the United Kingdom has ratified; or
         
      2. (b) which the United Kingdom has signed with a view to ratification.
         
   6. (6) No amendment may be made by an order under subsection (4) so as to come into force before the protocol concerned is in force in relation to the United Kingdom.
      

1. Interpretation of Convention rights.
   
   1. (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
      
      1. (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
         
      2. (b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
         
      3. (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
         
      4. (d) decision of the Committee of Ministers taken under Article 46 of the Convention,
         

      whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
      

   2. (2) Evidence of any judgment, decision, declaration or opinion of which account may have to be taken under this section is to be given in proceedings before any court or tribunal in such manner as may be provided by rules.
      
   3. (3) In this section “rules” means rules of court or, in the case of proceedings before a tribunal, rules made for the purposes of this section—
      
      1. (a) by
         ^F3
         …
         [
         ^F4
         the Lord Chancellor or
         ]
         the Secretary of State, in relation to any proceedings outside Scotland;
         
      2. (b) by the Secretary of State, in relation to proceedings in Scotland; or
         
      3. (c) by a Northern Ireland department, in relation to proceedings before a tribunal in Northern Ireland—
         
         1. (i) which deals with transferred matters; and
            
         2. (ii) for which no rules made under paragraph (a) are in force.
            

Legislation

1. Interpretation of legislation.
   
   1. (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
      
   2. (2) This section—
      
      1. (a) applies to primary legislation and subordinate legislation whenever enacted;
         
      2. (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
         
      3. (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
         

1. Declaration of incompatibility.
   
   1. (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
      
   2. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
      
   3. (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
      
   4. (4) If the court is satisfied—
      
      1. (a) that the provision is incompatible with a Convention right, and
         
      2. (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
         

      it may make a declaration of that incompatibility.
      

   5. (5) In this section “court” means—
      
      1. [
         ^F5
         (a) the Supreme Court;
         ]
         
      2. (b) the Judicial Committee of the Privy Council;
         
      3. (c) the
         [
         ^F6
         Court Martial Appeal Court
         ]
         ;
         
      4. (d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;
         
      5. (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal.
         
      6. [
         ^F7
         (f) the Court of Protection, in any matter being dealt with by the President of the Family Division, the Vice-Chancellor or a puisne judge of the High Court.
         ]
         
   6. (6) A declaration under this section (“a declaration of incompatibility”)—
      
      1. (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
         
      2. (b) is not binding on the parties to the proceedings in which it is made.
         

1. Right of Crown to intervene.
   
   1. (1) Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court.
      
   2. (2) In any case to which subsection (1) applies—
      
      1. (a) a Minister of the Crown (or a person nominated by him),
         
      2. (b) a member of the Scottish Executive,
         
      3. (c) a Northern Ireland Minister,
         
      4. (d) a Northern Ireland department,
         

      is entitled, on giving notice in accordance with rules of court, to be joined as a party to the proceedings.
      

   3. (3) Notice under subsection (2) may be given at any time during the proceedings.
      
   4. (4) A person who has been made a party to criminal proceedings (other than in Scotland) as the result of a notice under subsection (2) may, with leave, appeal to the
      [
      ^F8
      Supreme Court
      ]
      against any declaration of incompatibility made in the proceedings.
      
   5. (5) In subsection (4)—
      

      “criminal proceedings” includes all proceedings before the
      [
      ^F9
      Court Martial Appeal Court
      ]
      ; and
      

      “leave” means leave granted by the court making the declaration of incompatibility or by the
      [
      ^F10
      Supreme Court
      ]
      

Public authorities

1. Acts of public authorities.
   
   1. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
      
   2. (2) Subsection (1) does not apply to an act if—
      
      1. (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
         
      2. (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
         
   3. (3) In this section “public authority” includes—
      
      1. (a) a court or tribunal, and
         
      2. (b) any person certain of whose functions are functions of a public nature,
         

      but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
      

   4. (4)
      ^F11
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
      
   5. (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
      
   6. (6) “An act” includes a failure to act but does not include a failure to—
      
      1. (a) introduce in, or lay before, Parliament a proposal for legislation; or
         
      2. (b) make any primary legislation or remedial order.
         

1. Proceedings.
   
   1. (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
      
      1. (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
         
      2. (b) rely on the Convention right or rights concerned in any legal proceedings,
         

      but only if he is (or would be) a victim of the unlawful act.
      

   2. (2) In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.
      
   3. (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.
      
   4. (4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act.
      
   5. (5) Proceedings under subsection (1)(a) must be brought before the end of—
      
      1. (a) the period of one year beginning with the date on which the act complained of took place; or
         
      2. (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
         

      but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
      

   6. (6) In subsection (1)(b) “legal proceedings” includes—
      
      1. (a) proceedings brought by or at the instigation of a public authority; and
         
      2. (b) an appeal against the decision of a court or tribunal.
         
   7. (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.
      
   8. (8) Nothing in this Act creates a criminal offence.
      
   9. (9) In this section “rules” means—
      
      1. (a) in relation to proceedings before a court or tribunal outside Scotland, rules made by
         ^F12
         …
         [
         ^F13
         the Lord Chancellor or
         ]
         the Secretary of State for the purposes of this section or rules of court,
         
      2. (b) in relation to proceedings before a court or tribunal in Scotland, rules made by the Secretary of State for those purposes,
         
      3. (c) in relation to proceedings before a tribunal in Northern Ireland—
         
         1. (i) which deals with transferred matters; and
            
         2. (ii) for which no rules made under paragraph (a) are in force, rules made by a Northern Ireland department for those purposes,
            

            and includes provision made by order under section 1 of the
            ^M1
            Courts and Legal Services Act 1990.
            

   10. (10) In making rules, regard must be had to section 9.
       
   11. (11) The Minister who has power to make rules in relation to a particular tribunal may, to the extent he considers it necessary to ensure that the tribunal can provide an appropriate remedy in relation to an act (or proposed act) of a public authority which is (or would be) unlawful as a result of section 6(1), by order add to—
       
       1. (a) the relief or remedies which the tribunal may grant; or
          
       2. (b) the grounds on which it may grant any of them.
          
   12. (12) An order made under subsection (11) may contain such incidental, supplemental, consequential or transitional provision as the Minister making it considers appropriate.
       
   13. (13) “The Minister” includes the Northern Ireland department concerned.